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[2022] ZANCHC 68
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Samex Consulting (Pty) Ltd v Department of Roads and Public Works Northern Cape (2101/2021) [2022] ZANCHC 68 (28 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NUMBER: 2101/2021
Reportable:
NO
Circulate
to Judges:
NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
SAMEX
CONSULTING (PTY) LTD Applicant
and
DEPARTMENT
OF ROADS AND PUBLIC
WORKS:
NORTHERN CAPE First
Respondent
ACTING
HEAD OF THE DEPARTMENT
NORTHERN
CAPE Second
Respondent
RAMONA
GREWAN
Third
Respondent
CHIEF
FINANCIAL OFFICER
DEPARTMENT
OF ROADS AND PUBLIC
WORKS:
NORTHERN CAPE
Fourth
Respondent
MEC:
DEPARTMENT OF ROADS AND PUBLIC
WORKS
NORTHERN CAPE
Fifth
Respondent
FUFE
MAKATONG
Sixth
Respondent
Heard:
10 August 2022
Delivered:
28 October 2022
JUDGMENT
Phatshoane
DJP
[1]
This is an application for contempt of this Court’s order dated
23 November
2021 issued under Case No: 2101/2021 by Samex Consulting
(Pty) Ltd (Samex) against the Department of Roads and Public Works,
Northern
Cape (the department), its Acting Head of Department (the
HOD), its former HOD Ms Ramona Grewan, in her personal capacity, its
Chief Financial Officer (CFO), and its Member of the Executive
Council (MEC), Ms Fufe Makatong, in her official and personal
capacity.
These parties are cited as the first to the sixth
respondent. For convenience, they are collectively referred to as the
respondents.
The urgency in respect of which the application was
initially brought has somewhat abated.
[2]
On 23 November 2021, by agreement between the parties, this Court,
per
Mamosebo J, made an order which is central to the present
application (the Mamosebo J order). The relevant part reads:
‘
2.
The first respondent’s [department’s] termination of the
applicant’s [Samex’s] appointment as a
consultant to
provide professional services for the management and implementation
of maintenance in hospitals and community healthcare
facilities in
the Northern Cape Province for a period of three years on turnkey
basis is unlawful.
3.
The first respondent’s termination letter dated 31 August 2021,
signed by the second respondent, is set aside;
4.
Within 10 days of receipt of this order, the first and second
respondent must deliver to the applicant the terms of reference;
5.
Within 5 days of receipt of the terms of reference from the first and
second respondent, the applicant shall respond to
the terms of
reference;
6.
Once the applicant has responded to the terms of reference as stated
in 5 above, the first respondent is directed to perform
its
obligations in terms of the written agreement concluded between the
applicant and the first respondent on 30 November 2020.
7.
In the event the parties do not agree on the terms of reference, the
respondents are interdicted from appointing another
service provider
to render the service in terms of the agreement concluded with the
applicant on 30 November 2020 pending the agreement
on the terms of
reference.
[3]
I first consider Samex’s preliminary point that the
respondents’ second
answering affidavit, filed when all the
required number of affidavits had been exchanged, be disallowed. The
present application
was filed with the registrar of this Court on 02
March 2022. What followed naturally was the filing of the
respondents’ answering
affidavit (the first answering
affidavit) on 11 March 2022 deposed to by their attorney, Mr N
Gqadushe. On 17 March 2022 Samex
filed its replying affidavit. In
this, it took issue, correctly so in my view, that it was not the
attorney for the respondents
that had been called upon to show cause
why the respondents should not be held in contempt. As a consequence
of this, it was submitted,
that the respondents had failed to show
cause for their want of compliance with the court order.
Approximately 4 months later,
on 14 July 2022, the respondents filed
the second answering affidavit attested to by Mr Vuyani Mhlauli, the
second respondent who,
for a certain period of the alleged contempt
(approximately 6 months), had been employed by the department as the
acting HOD and
a successor of Ms Ramona Grewan, the third respondent.
[4]
Samex argued that the second answering affidavit was filed out of
sequence. Relying
on
Hano
Trading CC v J R 209 Investments (Pty) Ltd
[1]
,
it was contended, for Samex, that it was not for the respondent to
simply slip in the second answering affidavit into the court
file
which severely prejudices Samex, who had to meet a case based on
those facts.
[5]
Mr Mhlauli points out that the delivery of the second answering
affidavit was necessitated
by Samex’s assertion that the first
answering affidavit, insofar as it was deposed to by the respondents’
attorney,
did not exonerate the respondents of contempt and did not
constitute admissible evidence that would assist the court in
determining
whether the respondents have acted in wilful disobedience
of the Court order. Mr Mhlauli further states that the second
affidavit
was settled following receipt of counsel’s advice
that, as a sign of fidelity to the Constitution
[2]
and its injunction, the respondents were obliged to set out facts, on
oath, to show cause why their respective conduct did not
amount to
contempt of the Mamosebo J order. It was contended for the
respondents that failure to afford them an opportunity to
state their
case in full would result in grave injustice and prejudice to the
department as an institutional structure. To this
end, they seek
condonation for the belated filing and admission of the second
answering affidavit.
[6]
In
Grootboom
v National Prosecuting Authority
[3]
,
the
Constitutional Court held that condonation cannot be had for the mere
asking. A party seeking condonation must
make out a case
entitling it to the court's indulgence. This requires a party to give
a full explanation for the non-compliance
with the rules. Crucially,
the explanation must be reasonable enough to excuse the default.
[7]
The attestation of the first answering affidavit by the respondents’
attorneys,
is susceptible to criticism. In general, it is undesirable
for an attorney to depose to an affidavit on matters which can
with equal or more appropriateness be deposed to by his or her
client
[4]
just as he or she
cannot give evidence instead of his or her client. The respondents do
not state when they received advice from
counsel that awakened them
to file a fresh answering affidavit. The fact that the respondents
remained inert for a period of approximately
four months, prior to
filing the second answering affidavit, is lamentable.
[8]
The sufficiency of the explanation given for the delay is not wholly
determinative
of whether condonation should be granted.
[5]
Civil contempt has not divested itself of its criminal
dimension.
[6]
The convictions
following the proceedings are very serious in nature whereas the
remedies of committal or a fine have material
consequences on an
individual’s freedom and security of the person.
[7]
The nature of the application implicates the fair trial rights of the
alleged contemnors as set out in
s 35(3) of the Constitution and the right not to be detained
without a fair trial.
[8]
The
respondents raised and ventilated their defence in their second
answering affidavit. The evidentiary burden reposes on them
to
demonstrate that the disobedience was not deliberate and
mala
fide.
They do have the right to state their case in full and to challenge
evidence. To prevent them from placing evidence before court
would be
an affront to the Constitution and is certainly not in the interest
of justice. To remedy any resultant prejudice, which
I can conceive
of none at this stage, I have afforded Samex the opportunity to file
an additional replying affidavit in answer
to the second answering
affidavit, should they be so inclined, which they did. Accordingly,
late filing of the second affidavit
is condoned and it is admitted
into the record.
[9]
On or about 18 August 2020, Samex received a letter from the
department informing
it that it had been nominated to provide
professional services for the management and implementation of
maintenance work in hospitals
and community healthcare facilities in
the Northern Cape Province for a period of three years. The extent of
the services required
from Samex was set out in Section G and
Annexure A to the contract. Samex accepted the nomination and
furnished the department
with a 15% discount rate for the services it
had been nominated to provide. On 09 September 2020, through a letter
signed by Ms
Grewan, the department appointed Samex to perform the
mentioned services for a period of 3 years on a turnkey approach. It
was
also provided with a written agreement on 13 November 2020.
Pursuant to this, the department never gave Samex any instruction
to
commence work.
[10]
As a consequence of the department’s rebuff, Samex directed a
letter to the department
on 22 January 2021 to confirm the status of
Samex’s anticipated instructions from the department to perform
and the time-schedule
for the instructions in question during the
contractual period. In reply, the department notified Samex
that it was appointed
on an “as and when required” basis.
On 31 August 2021, the department informed Samex that its appointment
was irregular
in that it was too vague as it did not stipulate which
facilities were to be maintained. Samex was further advised that in
terms
of clause 1.6.2 of the contract:
“
(T)he
client [the department] reserves the right to cancel if instructions,
necessary for you to continue with the work after a
delay or
deferment instructions, are not received from client within 6 months
after such instructions were requested by you. Since
your appointment
there has not been further instructions to you on the project.
There
are no funds available to cover the total envisaged expenditure for
these services.”
[11]
The delivery of a letter above culminated into Samex bringing an
urgent application on 12 October
2021 in which it sought to, inter
alia, set aside the termination of its appointment on the basis that
it was unlawful. The respondent
did not resist the application but
adopted a position in terms of which it would undertake a process of
redefining Samex’s
scope of work for purposes of carrying out
its obligation under the contract. As already stated, the parties
agreed on 23 November
2021 to the order that was subsequently issued
by Mamosebo J declaring the termination of Samex’s appointment
unlawful and
setting it aside.
[12]
Approximately two weeks following the granting of the Mamosebo J
order, Samex’s attorneys
dispatched a letter to the respondents
on 07 December 2021 to secure their compliance with the order. On 17
December 2021, Samex
lodged the first contempt application because
the department and the HOD had failed to submit the terms of
reference as set out
in the Mamosebo J order. On that same date, the
department and the acting HOD submitted the revised terms of
reference. On 20 December
2021, Samex voiced its objection to the
revised terms of reference and made further proposals on them. On 10
January 2022, Samex
requested the respondents to respond to Samex’s
reply to the terms of reference. On 11 January 2022, the date in
respect
of which the first contempt application was to be heard, the
respondents’ current attorneys placed themselves on record and
undertook to reply to Samex’s response to the terms of
reference by no later than 13 January 2022. On the basis of this
undertaking, the first contempt application was withdrawn. However,
the department’s attorneys failed to act in accordance
with
their undertaking.
[13]
Samex’s sole director and its deponent, Mr Nyakale Qhojeng,
states that through his investigative
work, he visited Dr Harry
Surtie Hospital, Upington, in February 2022 and discovered that the
department had appointed an entity
trading as Mekan Engineering
(Mekan) to render the services akin to those which Samex was
appointed to execute. In view of this,
Samex’s attorneys
directed a letter to the respondents’ attorneys on 21 February
2022 to apprise them that the department
was acting in contempt of
the Mamosebo J order, in particular para 7 thereof, in that it had
appointed a contractor to perform
the work that Samex had been
contractually assigned to do. Samex contends that until such time as
the agreement on the terms of
reference would have been reached
between itself and the department, no service provider ought to have
been appointed to perform
the services that were contractually meant
for it to execute as set out in the Mamosebo J order. To the extent
that the respondents
appointed Mekan, it was argued, they acted in
wilful disrespect of the authority of the court and thus made
themselves guilty of
contempt of court.
[14]
By means of a letter dated 21 February 2022, the department was
placed on terms to engage Samex
to commence with the execution of the
work by 24 February 2022. The department did not revert to Samex
which precipitated the launching
of the present second contempt
application by Samex against the respondents.
[15]
The department version, from the date of the withdrawal of the first
contempt application, is
slightly different. According to it, there
had been ongoing settlement negotiations between the parties. It came
as a complete
surprise to it that on 26 May 2022 Samex’s
attorneys intended to proceed with the hearing of the application on
27 May 2022.
However, the application was not heard because the
presiding judge directed the parties to endeavour to settle the
matter. The
application was postponed to 3 June 2022. On 2 June 2022,
the eve of the hearing, Samex’s attorneys provided the
department
with another proposal on the revision of the terms of
reference. There was an objectionable term which the department
states it
could not accede to which resulted in a breakdown in the
negotiations. The result was that no terms of reference were
concluded.
The department contends that it attempted to comply with
the Mamosebo J order but for the impasse. There had been no term in
the
agreement and/or the Mamosebo J order on how to resolve the
stalemate.
[16]
The respondents further contend that the settlement agreement, which
is the substratum of the
court order, was concluded on the basis of
the advice received from their erstwhile attorneys and made an order
of this Court.
The said agreement, it was argued for the respondents,
constitutes
pactum de contrahendo,
an agreement to contact,
which is unenforceable as parties are given absolute discretion to
agree to disagree. Its unenforceability
is compounded by the
conspicuous absence of a deadlock mechanism, in the event of an
impasse. Consequently, so it was argued, the
settlement agreement and
by extension, the Court order, which Samex seeks to vindicate the
authority of the Court, is not underpinned
by a lawful substratum and
an insistence on its compliance would result in an egregious
miscarriage of justice.
[17]
It was further argued for the respondents that the agreement defies
the Constitution
[9]
and the
law. To this end, it was submitted that sufficient basis
existed for the respondents to be excused from its compliance.
The
respondents urged the Court, to the extent that they may be found to
have contravened para 7 of the court order, in having
appointed a
different service provider other than Samex, to exonerate them
because, they claim, their conduct was excusable.
[18]
Apparent from the exposition which I have sketched, four issues arise
for consideration. The
first, concerns the status of the Mamosebo J
order. The respondents put it bluntly that it is unlawful and ought
to be disregarded
as it is not supported by a lawful substratum.
Samex holds a different view. Secondly, it should be considered
whether the respondents
acted mala fide and or in wilful disregard of
the Mamosebo J order. Thirdly, should it be determined that there had
been wilful
non-compliance with the order, each of the respondent’s
complicity would have to be determined. Lastly, the criminal sanction
or civil penalties to vindicate the court’s honour should be
considered. I propose to deal sequentially with these issues.
The
Status of the Mamosebo J order
[19]
One of the characteristics of a punitive
order
of contempt, similar to that sought by the Samex, is that it is
influenced by the need to assert the authority and dignity
of the
court to set an example for others.
[10]
The broader public has an interest in the obedience to court orders
since disregard sullies the authority of the courts and
detracts
from the rule of law.
[11]
I am reminded in this context of the following important exhortation
by the Constitutional Court in
Municipal
Manager OR Tambo District Municipality & another v Ndabeni
:
[12]
‘
[23]
Trite, but necessary it is to emphasise this court’s repeated
exhortation that constitutional
rights and court orders must be
respected. An appeal or review — the latter being an
option in the case of an order
from the Magistrates’ Court —
would be the proper process to contest an order. A court would not
compel compliance
with an order if that would be ‘
patently
at
odds with the rule of law’. Notwithstanding, no one should
be left with the impression that court orders —
including
flawed court orders — are not binding, or that they can be
flouted with impunity.
[24]
This court in
State Capture
reaffirmed that
irrespective of their validity, under s 165(5) of the Constitution,
court orders are binding until set
aside. Similarly,
Tasima
[
Department of
Transport & others v Tasima (Pty) Ltd
2017 (2) SA 622
(CC)] held that wrongly issued judicial orders are not
nullities. They are not void or nothingness, but exist in fact
with
possible legal consequences. If the judges had the
authority to make the decisions at the time that they made them, then
those
orders would be enforceable.’
[20]
It was argued for Samex that a court order is binding until set
aside. That the Mamosebo J order
is unlawful, it was argued, was an
afterthought; and a challenge made at the behest of the respondents
designed to frustrate Samex.
[21]
It is so that the respondents did not assail the correctness of the
judgment or the validity
of the Mamosebo J order by way of an appeal
nor was the department’s decision to appoint Samex impugned by
means of a review.
There rested a public duty on the respondents to
pursue the appeal to correct the illegality.
[13]
If it is so that the Mamosebo J order is not supported by any lawful
substratum, then this Court would not be bound by what is
legally
untenable.
[14]
As stated
earlier, the respondents attack the order principally on the basis
that it comprises an agreement to agree and thus unenforceable.
[22]
Samex letter of appointment at para 1.8 states:
‘
1.8
Agreement
1.8.1
The conditions, as set out in this letter, together with Sections
mentioned herein, as listed in Section A, together with
your letter
of acceptance in terms of item 2 below, constitutes the entire
agreement between you and the client [ department].
No variation
thereto will be of any force and effect unless agreed to in writing
and signed by the duly authorised representatives
of both parties..’
[23]
Section A of the agreement sets out the settlement of disputes clause
in these terms:
‘
26.1 If
any
dispute or difference of any kind whatsoever
arises between the
Client [department] and Consultant [Samex] in connection with or
arising out of the agreement, the parties shall
make every effort to
resolve amicably such dispute or difference by mutual consultation.
26.2 If, after thirty
(30) days, the parties have failed to resolve their dispute or
difference by mutual consultation, then either
of the parties may
give notice to the other party of his intention to commence with
mediation. No mediation in respect of this
matter may be commenced
unless such notice is given to the other party.
26.3 Should it not be
possible to settle a dispute by means of mediation, then such dispute
may be settled in a South African court
of law’.
[24]
The value of certainty in commercial contracts requires protection.
What lies at the heart of
this, is the principle of
pacta
sunt servanda
,
that contracts should be complied with, which is recognised for that
reason. Thus, bargains struck by parties should in principle
be
observed. That is foundational to our law of contract. Indeed, there
may be exceptions where public policy determines that the
bargain is
unconscionable as far as any party to it is concerned.
[15]
Generally, courts will not enforce 'an agreement to agree'.
[16]
The proper approach in that form of an enquiry depends upon the
construction of the particular agreement.
[17]
Having
carefully traversed the position obtaining in other jurisdictions, on
an agreement to negotiate and an agreement to
agree, such as Canada,
New Zealand and, Australia in
Shepherd
Real Estate Investment (Pty) Ltd v Roux Le Roux Motors CC
[18]
,
Ponnan JA concluded as follows on this aspect:
‘
[18]
In
Southernport
[
Southernport Developments (Pty)
Ltd v Transnet Ltd
2005 (2) SA 202
(SCA)] (para 16)
reference was made to the three situations adverted to by Kirby P
in
Coal Cliff
[
Coal Cliff Collieries Pty Ltd v
Sijehama Pty Ltd
]
(1991) 24 NSWLR 1
, namely:
(i) 'In
many contracts it will be plain that the promise to negotiate is
intended to be a binding legal obligation
to which the parties should
be held. The clearest illustration of this class will be cases where
an identified third party has
been given the power to settle
ambiguities and uncertainties. . . . But even in such cases, the
court may regard the failure to
reach agreement on a particular term
as such that the agreement should be classed as illusory or
unacceptably uncertain. . . .
In that event the court will not
enforce the agreement.'
(ii) 'In
a small number of cases, by reference to a readily ascertainable
external standard, the court may be able
to add flesh to a provision
which is otherwise unacceptably vague or uncertain or apparently
illusory.'
(iii) 'Finally,
in many cases, the promise to negotiate in good faith will occur in
the context of an "arrangement"
(to use a neutral term)
which, by its nature, purpose, context, other provisions or otherwise
makes it clear that the promise is
too illusory or too vague and
uncertain to be enforceable.'
[19]
Southernport
added:
'The principles enunciated in
Coal Cliff Collieries
accord
with our law. The first and third situations alluded to by Kirby P
are covered, respectively, by
Letaba Sawmills
and
Firechem
.'
The agreement in
Southernport
fell into the first
category…’
[25]
The agreement with which I am here concerned (as foreshadowed in the
Mamosebo J order) cannot
be read separately from the first main
agreement which largely regulates all the contractual obligations
between the parties. As
I have shown, the main agreement contains the
dispute resolution mechanism.
In
Southernport Developments (Pty) Ltd v Transnet Ltd
[19]
the
agreement to negotiate the terms in good faith had been linked to an
arbitration clause which provided that, in the event of
a
dispute's arising between the parties in respect of any of the terms
of conditions of the lease agreement, the dispute would
be referred
to arbitration and the decision of the arbitrator would be final and
binding on the parties. There, Ponnan AJA (as
he then was) held that:
‘
(T)he arbitrator
was entrusted with putting the flesh onto the bones of a contract
already concluded by the parties…
For what elevates this
agreement to a legally enforceable one and distinguishes it from an
agreement to agree is the dispute resolution
mechanism to which the
parties have bound themselves. The express undertaking to negotiate
in good faith in this case is not an
isolated edifice. It is linked
to a provision that the parties, in the event of their failing to
reach agreement, will refer such
dispute to an arbitrator whose
decision will be final and binding. The final and binding nature of
the arbitrator's decision renders
certain and enforceable, what would
otherwise have been an unenforceable preliminary agreement.’
[20]
[26]
Southernport,
which
was cited with approval by the Constitutional Court in
Makate
v Vodacom Ltd,
[21]
resonates with the present setting. The dispute on the settlement of
the terms of reference between Samex and the respondents is
“of
any kind whatsoever” as envisaged in clause 26.1 (the dispute
settlement) of the main agreement referred to above.
On 9 September
2021, almost two months prior to the Mamosebo J Order, Samex invoked
clause 26 and directed a request to the respondents
to provide an
undertaking that they would not appoint another service provider
until the mediation process was finalised. Surely,
on the basis of
clause 26, it cannot be argued that the parties had no
‘deadlock-breaking mechanism’ in the event they
could not
agree on the terms of reference. To the extent that there was an
impasse, on the terms of reference, the parties had
the means of
resolving such. The mediation process itself, as I see it, may have
yielded to the meeting of minds and assisted the
parties to carve out
the terms of reference. It follows that the ‘agreement to
agree’ on the terms of reference, properly
construed in this
instance, cannot be said to be illusory or void for vagueness and
unenforceable as the respondents sought to
argue.
[27]
The respondents’ further attack on the order is predicated on
the Constitution. They invoked
the Constitutional Court’s
decisions in
Eke
v Parsons
[22]
and
Buffalo
City v Asla Construction
[23]
in support of their argument that it did not follow that anything
agreed to by the parties ought to be accepted by a court and
made an
order of court. The order should be competent and proper. The court
must not be mechanical in its adoption of the terms
of a settlement
agreement.
[24]
It was
submitted, that when Mamosebo J made the settlement agreement an
order of court, she simply acted in a mechanical fashion
without
ensuring that the order that was sought conformed with the
Constitution and the law. This, so it was argued, resulted in
non-compliance with the order which is excusable as to insist on its
compliance would be inimical to the Constitution.
[28]
The respondents’ contention that the order offends against the
Constitution and the law,
is premised on their submission that the
order was unenforceable as it finds its roots in the invalid
agreement. I have already
said the agreement was not void. Much
more on the tangential side, the respondents’ deponent,
perfunctorily, states
that he had been advised that the agreement was
not compliant with s 217 of the Constitution and therefore
susceptible to review
in terms of the principle of legality. He
states that Samex’s nomination as a contractor does not appear
to have been
made pursuant to a process that is fair, transparent,
competitive and cost-effective as contained in our procurement
statutory
architecture. It may well be, but this is not a review
application nor its determination. In any event, in my view, it is
simply
insufficient for the respondents to make allegations that are
unsubstantiated. It is also a bit disquieting that such a review,
as
at the date of the hearing of this application, had not been brought.
It bears repeating that already on 31 August 2021, more
than a year
ago, the respondents informed Samex that its appointment was
irregular in that it was too vague because it did not
stipulate which
facilities Samex had to service. But still, it did nothing to correct
the irregularity. On the aforegoing analysis,
I am of the view that
the respondents did not make out a case that the Mamosebo J order is
without any force. I now turn to the
question whether the respondents
acted mala fide and or in wilful disregard of the Mamosebo J order.
Compliance
with the Mamosebo J order
[29]
The jurisdictional requirements for an order of civil contempt are
well-established. The applicant
must prove the existence of the
order; service or notice; and wilfulness and mala fides beyond
reasonable doubt.
[25]
Once the
applicant has proved the order, notice and non-compliance, the
respondent’s conduct is presumed to be both wilful
and mala
fide and it bears an evidential burden to rebut that presumption. For
an act to constitute civil contempt, there must
have been an
intention to defeat the course of justice.
[26]
[30]
In the respondents’ say-so, there is no dispute with regard to
the existence of the court
order; its delivery on the respondents;
and the alleged non-compliance.
From
the background facts, during the period 17 December 2021 to 2 January
2022, various attempts were made by the parties
to settle the
terms of reference, including the preparation and exchange of several
draft proposals for such terms. This was at
a glacial pace because
the respondents’ attorneys took time to respond to
correspondence. In the end, the drafting of the
terms of reference
came to naught.
Where
there had been various attempts to settle the dispute, the officials
cannot be said to have been in willful disobedience
of the court
order.
[27]
To
the extent that the Mamosebo J order stipulated that the parties must
agree on the terms of reference, regard being had to the
various
letters exchanged with a view to crafting such terms, it cannot be
said that the respondents were in complete wilful defiance
of the
order. However, there is more. Para 7 of the Mamosebo J order
states that in the event the parties do not agree on
the terms of
reference, the respondents are interdicted from appointing another
service provider to render the service in terms
of the agreement
concluded with the applicant on 30 November 2020 pending the
agreement on the terms of reference. The department
nonetheless
appointed Mekan. The question is whether in so doing their conduct
was excusable.
[31]
According to Mr Mhlauli, the department appointed Mekan on 27 August
2015 as a consultant to
provide mechanical engineering services for
the supply, installation, servicing/maintenance of HVAC equipment for
a period of three
years. That contractual period would have ended in
August 2018. On 16 May 2019, Mekan was appointed to render services
on back-up/standby
generators for the healthcare facilities for a
period of three years whereas Samex was appointed on 9 September 2020
to provide
the same services that Mekan had previously been appointed
to perform in term of the contract that expired in 2018. On 22 June
2020, Mr Mhlauli says that Mekan’s services were suspended due
to budgetary constraints. More than a year later, on
15
December 2021, during the subsistence of the contractual relationship
between Samex and the department, the Department of Health
issued an
instruction to the department requesting an urgent appointment of an
electrical/mechanical engineer for repairs and maintenance
of HVAC at
Dr Harry Surtie Hospital. On that same date, the third respondent,
the then acting HOD, Ms Ramona Grewan, appointed
Mekan.
[32]
Mr Mhlauli states that the instruction to appoint a service provider
to attend to Dr Harry Surtie
Hospital above was transmitted during
the builders’ holiday and required execution by a contractor
which was experienced
in the maintenance of HVAC. He further says
that the urgency of retaining their services was occasioned by the
need to ensure that
surgical procedures were undertaken to facilitate
the treatment of patients, thus a matter of life and death. Mr
Mhlauli says that
Samex was not deemed to have the requisite skill
possessed by Mekan. It was out of the circumstances of necessity
which required
that the department appoint Mekan and therefore ought
to be excused from liability for contempt.
[33]
As already alluded to, on 15 December 2021, contrary to the terms of
the Mamosebo J’s order,
the department appointed Mekan to
perform the same work which was meant to be executed by Samex in
terms of the contractual arrangement
between Samex and the
department. At that stage Mekan, as said, was engaged by the
department to conduct maintenance of the back-up
/standby generator
and not the repairs of the HVAC (heating, ventilation and air
conditioning) system (said to be an air conditioning
system) which it
was instructed to perform.
[34]
The contention to the effect that Samex had no experience to attend
to the repairs and maintenance
of the HVAC system is problematic. It
is hard to imagine that the department would have appointed Samex
during November 2020 to
perform this type of work without having
determined its adequacy and competency to execute it. No sufficient
evidence was adduced
to demonstrate that Samex would have been unable
to perform the work that Mekan was called out to do on an urgent
basis. In my
view, the respondent’s averment that it acted out
of necessity in not complying with the Mamosebo J order is wanting
and
cannot serve as an excuse. It bears emphasis that the department
agreed to the terms of the Mamosebo J order.
No
plausible reason has been provided why Samex as the appointed
contractor ought not to have been engaged to render the services
while the negotiations on the terms of reference were afoot.
Consequently, there had been a
partial wilful breach of the Mamosebo J order. Put differently, to
the extent that the respondents
appointed a service provider
conflictual to the terms of the Mamosebo J order, they acted
deliberately and mala fide.
The
respondents’ complicity.
[35]
It is settled that
contempt
of court is not an issue
inter
partes
;
it is an issue between the court and the party who has not complied
with a mandatory order of court.
[28]
So
far, when evaluating the issues, I have generally referred to the
respondents jointly without distinction. However, it is important
that each of their complicity be established. In light that
the
relief sought is one of committal, the criminal standard of proof,
beyond reasonable doubt, is applicable.
[29]
Stated otherwise, it must be clear beyond reasonable doubt that an
official implicated is the person who has wilfully and with
knowledge
of the court order failed to comply with its terms.
[30]
[36]
Samex imputes non-compliance with the order on all the respondents.
The respondents countervailed
that the first respondent, the
department, as a juristic person cannot be held in contempt.
With regard to Ms Grewan (HOD
of the time) and Ms Makatong (MEC of
the time), it was argued that for them to be held in contempt, in
their personal capacity,
they ought to have personally and
deliberately acted in defiance of the Mamosebo J order. It was
further contended that the CFO,
the fourth respondent, and the MEC
both in her personal and representative capacity, had nothing to do
with the contempt proceedings
and did not make common cause with
anyone to defy the authority of the Court. In any event, it was
submitted, the Mamosebo J order
was against the department and the
HOD, in her representative capacity and had nothing to do with any of
the other respondents.
[37]
A
deliberate non-compliance or disobedience of a court order by the
State through its officials amounts to a breach of its constitutional
duty to obey court orders.
[31]
Therefore,
the argument that the department, the first respondent, cannot be
held in contempt must falter. Orders and decisions
issued by a court
bind all persons to whom and organs of state to which they apply, and
no person or organ of state may interfere,
in any manner, with the
functioning of the court.
[32]
The fifth respondent’s stance (the MEC), that she had no
role to play is equally problematic in the face of s 165(5)
of the
Constitution which provides that an order or decision by a court
binds all persons to whom it applies. It may well not have
been her
responsibility to take steps necessary to comply with the order.
However, she ought not to have been an innocent
bystander in the
midst of flagrant disobedience of the order. She clearly did nothing
to impress upon the officials of her department
to act as they were
enjoined to do by this Court’s order. After all, in terms
of s 125
(6)(a)
of the Constitution the provincial executive, must act in accordance
with the Constitution whereas
s
125(2) (e) places an obligation on the Premier to exercise the
executive authority, together with the other members of the Executive
Council, by amongst others, co-ordinating the functions of the
provincial administration and its departments.
[38]
A reminder of the remarks by Jafta J in
Mjeni
v Minister of Health and Welfare, Eastern Cape
[33]
is apposite:
“
It is certainly
not in the interest of justice to deny successful litigants the only
option available for enforcing judgments or
orders against the State.
Nor is it in the interest of justice to refuse upholding the rule of
law and effectively thereby placing
certain public officials above
the law. That, in a sense, would be inimical to the ethos and
values contained in the Constitution,
which creates a democratic
state founded upon the 'Supremacy of the Constitution and the rule of
law'.”
[39]
The Second respondent, Ms Grewan, was the acting HOD of the
department and its accounting officer
when the Mamosebo J order was
issued. She is presently employed by the department, albeit in a
different capacity, as a Chief Director
EPWP. She personally issued a
letter to Mekan appointing it contrary to the terms of the order.
That
in appointing
Mekan, she acted out of necessity which provided sufficient basis
that she be exculpated cannot avail her for reasons
already stated.
[40]
The respondents’ deponent, Mr Mhlauli, as already alluded to,
also acted as the Head of
the Department and took over from Ms
Grewan. He stated, in no unequivocal terms, that at all relevant
times to the present contempt
application, he was the accounting
officer responsible for the overall management and day-to-day running
of the affairs of the
department. Clearly, when he took over from Ms
Grewan, he did not see to it that the department complied with the
terms of the
order and ought to be held accountable.
[41]
The position of the Chief Financial Officer (CFO), the fourth
respondent, on the question of
compliance with the Mamosebo J order,
is a bit obscure. Apart from the fact that the CFO was not
cited as a party to the
proceeding before Mamosebo J, nothing was
placed before court to show how he or she, in his or her
representative capacity, had
been complicit in defying the order. In
the circumstances, He/she is exonerated. As Wallis JA and
Schoeman AJA pointed out
in
Meadow
Glen Home Owners Association v Tshwane City Metropolitan Municipality
(Meadow Glen)
:
[34]
‘
[20]..(T)here is
no basis in our law for orders for contempt of court to be made
against officials of public bodies, nominated
or deployed for that
purpose, who are not themselves personally responsible for the wilful
default in complying with a court order
that lies at the heart of
contempt proceedings…
[22]…Contempt of
court is too serious a matter for it to be visited on officials,
particularly lesser officials, for breaches
of court orders by public
bodies for which they are not personally responsible.’
[42]
I conclude that the department, its MEC and the two acting HODs, Ms
Grewan and Mr Mhlauli, did
not cover themselves with glory in
ensuring that the Mamosebo J order was executed.
The
Sanction
[43]
One of the key objectives of contempt proceedings is to coerce
litigants into complying with
court orders and to vindicate the rule
of law rather than to punish the transgressors, although the Court
may show its displeasure
by means of punishment.
[35]
The committal order, in this case, may well turn brutum fulmen
(ineffectual) because the two acting HODs, instrumental to the
disobedience, have already vacated their office. The current
incumbent is not before this court. In order to coerce compliance,
I
am of the view that the department be afforded a further limited
opportunity to comply with the Mamosebo J order through its
current
HOD.
[44]
The applicant achieved substantial success and ought not be out of
pocket. In light of the constitutional
obligations that rested on the
respondents, already stated in this judgment, this litigation could
have been avoided. Consequently,
I can conceive of no reason why
costs should not follow the results on a punitive scale as a mark of
this court’s displeasure.
As to the wasted costs, in respect of
the proceedings of 22 July 2022, the respondents could have also
prevented the wanton delay
by deposing to the first answering
affidavit. Insofar as their second answering affidavit was delivered
late, which resulted in
a postponement to afford Samex the
opportunity to respond, the respondents submitted that any resultant
prejudice could be ameliorated
by an appropriate costs order. I agree
and make the following order.
ORDER
1.
The Department of Roads and Public
Works, Northern Cape, the first respondent, is to comply with the
consent order of this Court
handed down on 23 November 2021 under
Case No: 2101/21 within 30 days from the date of this order.
2.
Should the first respondent not comply
with para 1 of this order, the applicant may, if so advised, approach
this court on same
papers, duly supplemented where necessary, for any
appropriate relief including but not limited to an order declaring
the respondents,
including the current serving HOD, to be guilty of
contempt.
3.
The first, second, third, fifth and
sixth respondents shall, jointly and severally, the one paying the
other to be absolved, pay
the costs of this application including the
costs occasioned by the postponement of 22 July 2022 on attorney and
client scale.
4.
A copy of this judgment and order is to
be served upon all the respondents including the current Head of the
Department of Roads
and Public Works, Northern Cape, and/or his/her
successor in accordance with the uniform rules of this Court.
5.
The Registrar of this Court is directed
to forward a copy of this judgment and order to the Premier of the
Northern Cape Province.
MV
PHATSHOANE
Appearances:
For
the applicant:
Mr X Mofokeng
Instructed
by: RAMS
Attorneys, Johannesburg
Mkhokeli
Pino Attorneys, Kimberley.
For
the respondents:
Mr T Sibeko SC (with Mr L Bomela)
Instructed
by: Gqadushe
Attorneys, Kimberley.
[1]
[2012] ZASCA 127
;
2013 (1) SA 161
(SCA);
[2013] 1 All SA 142
(SCA)
at para 13.
[2]
The
Constitution of the Republic of South Africa, 1996.
[3]
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68
(CC);
(2014 (1) BCLR 65
;
[2013] ZACC 37)
para 23.
[4]
Mazibuko
v Singer
1979 (3) SA 258
(W) at 264F.
[5]
S
v Ndlovu
2017
(2) SACR 305
(CC) para 32.
[6]
See the remarks by Cameron JA in
Fakie
No v
CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 11- 17.
[7]
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others
2018 (1) SA 1
(CC).
[8]
Section 12(1)(b) of the Constitution.
[9]
The
Constitution
of the Republic of South Africa, 1996.
[10]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector Including
Organs
of State v Zuma and others (Helen Suzman Foundation as amicus
curiae)
2021 (5) SA 327
(CC) para 47;
2021 (9) BCLR 992
(CC).
.
[11]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 8.
[12]
(2022)
43 ILJ 1019 (CC) paras 23-24.
[13]
Municipal
Manager OR Tambo District Municipality & another v Ndabeni
(2022) 43 ILJ 1019 (CC) para 41.
[14]
Government
of the Republic of South Africa v Von Abo
2011 (5) SA 262
(SCA)
para
19.
[15]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (7) BCLR 691
(CC);
See
also
,
Sasfin
(Pty) Ltd v Beukes
1989 (1) SA 1
(A); Lewis “
The
Uneven Journey to Uncertainty in Contract
”
2013 (76) THRHR, Page 82.
[16]
Shepherd
Real Estate Investment (Pty) Ltd v Roux Le Roux Motors CC
2020 (2) SA 419
(SCA) at para 16.
[17]
Ibid
para 17.
[18]
Ibid paras 18-19.
[19]
2005 (2) SA 202 (SCA).
[20]
Ibid
para
17.
[21]
2016
(4) SA 121
(CC) para 97.
[22]
2016
(3) SA 37(CC).
[23]
2019
(4) SA 331(CC).
[24]
See
para 34 fn 22 (
Eke
v Parsons
)
and para 23 (
Buffalo
City
v
Asla Construction
)
fn 23.
[25]
Mashamaite
and others v Mogalakwena Local Municipality and others; Member of
the Executive Council for Coghsta, Limpopo and another
v Kekana and
others
[2017] 2 All SA 740 (SCA).
[26]
Multichoice
Support
Services
(Pty) Ltd v Calvin Electronics and another
2021 JDR 2529 (SCA) para 20.
[27]
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others (
above
fn 7 and fn 29
)
para
78.
[28]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 38;
See
also
Federation
of Governing Bodies of South African Schools (Gauteng) v MEC for
Education, Gauteng
2002
(1) SA 660
(T) at 673D-E.
[29]
Matjhabeng
Local Municipality v Eskom Holdings (Pty) Ltd
2018
(1) SA 1
(CC) para 73.
[30]
Meadow
Glen Home Owners Association v Tshwane City Metropolitan
Municipality
2015
(2) SA 413
(SCA)
at
422H–423A and 424E–H.
[31]
Mjeni
v Minister of Health and Welfare, Eastern Cape
2000 (4) SA 446
(TkH) at 452H.
[32]
Pheko
and Others v Ekurhuleni City
2015
(5) SA 600
(CC);
(2015 (6) BCLR 711
;
[2015] ZACC 10)
at para 1.
[33]
2000 (4) SA 446
(TkH) at Page 455H.
[34]
Meadow
Glen Home Owners Association v Tshwane City Metropolitan
Municipality
2015
(2) SA 413
(SCA) at para 20.
[35]
Mjeni
v Minister of Health and Welfare, Eastern Cape (
above
fn 30)
at
456B.